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SUPREME COURT.
IN APPELLATE JURISDICTION. (Before the Full Court.)
Tuesday, June 14.
THE RENDITION CASE.
Their Lordships delivered the following judgment this morning ou Mr Dennys' ap- plication for a writ of habeas corpus in the case of Leung Afu :-
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On the application of Mr Dennys, sup- ported by two affidavits-one by himself and the other by Leung Afu, a prisoner iu the Victoria Gaol, committed under the Extradition Ordinance, Leung Afo brought before the Court on a writ of habeas corpus. To his return to the writ, the Superintendent of the Gaol annexes the warrant under which he holds the prisoner, which is as follows:-
Be it remembered that on the twenty- ninth day of April, in the year of Our Lord, one thousand eight hundred and eighty seven whoreas Trang Chun alios Leung Fu was on this day duly convicted befora Benry Ernest Wodehouse, Esq., C.M.G., a Police Magistrate and one of Her Mai jesty's Justices of the Peace in and for the said Colony, for that communication having been received requiring the rendition of the said defendant on behalf of the Chinese Government as a subject of China and as having committed certain crimes or offences against the laws of China by having com- mitted murder and burglary within the jurisdiction of the Emperor of China and it appearing to me upon investigation of the case, that there is cause to believe that the said defendant is a subject of China, and has committed the crimes or offences against the laws of China by having committed murder and burglary within the jurisdic- tion of the Emperor of China and it was thereupon adjudged that the said defendant for the said crimes or offences should be committed to gaol for detention pending the receipt of an order from the Governor or Officer Administering the Government. of Hongkong as to his further disposal.
These are therefore to command you the said constable to take the said defendant and him safely to convey to the said gaol and there to deliver him to the said super- intendent or keeper thoreof, together with this precept and I do hereby command you the said superintendent or keeper to receive the said defeudant into your cus- tody in the said gaol and there to imprison him as aforesaid.
Given under my hand and real at Vic- toria aforesaid this twenty-th day of April in the year of Our Lord one thousand eight hundred and eighty-seven.
(Sd.) H. E. WODEHOUSE,
Police Magistrate.
Notice of a writ of certiorari was served, and this writ was moved for and the pro- ceedings before the magistrate were brought into court by the magistrate himself and were referred to in the argument on the Mr return of the writ of habeas corpus. Francis, Q.C., appeared on behalf of the Chi- nesc Government to support the warrant of commitment. The committing magistrate appeared in person and handed in the proceedings. The Acting Attorney General appeared to watch the case on behalf of the Government, but took no part in the proceedings. Mr Dennys for the prisoner, by special leave in absence of Counsel, argued that the prisoner was detained on a warrant which was bad on the face of it, as there was no offence recited over which the He cited magistrate had jurisdiction. Regina v. King, 13 L.J.M.C., 43, and other The cases, which we have examined. warrants in these cases omitted to state the gist of the offences for which the magistrates committed. In the matter of Peerless, 1. A. and E., (N. S.), bears most ou this matter. It appears from the proceed- ings at the Police Court that the prisoner and two others were charged on the 19th February last, as subjects of China, with murder and burglary within the jurisdiction of the Emperor of China on the 9th October last. Several examinations took place, and in the course of the proceedings Mr Dennys alleged that one of the principal witnesses for the Chinese authorities had committed
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perjury, and the man was charged with it, and the investigation of the case against Lenng Afn and the others was postponed, pending the trial of this witness for perjury. It ap- pears that although the witness was com- mitted for trial for perjury, the Attorney General, for reasons no doubt satisfactory to the Crown, entered a nolle prosequi, and proceedings against the prisoner were thus abandoned. After this, the rendition case was resaped, and it appears from the af- fidavit and from the Magistrate's own notes that the Magistrate refused to hear any evidence on behalf of the prisoners, al- though Mr Dennys on behalf of one priso- ner, and Mr Holmes on behalf of an- othor, asked to be allowed to produce evid- of Chinese In rendition cases subjects in this Colony, the procedure and powers of the magistrates are to be found in Ord. 2 of 1850 and Ord. 2 of 1871. Ord, 2 of 1850 was passed to carry out the treaty of the Bogue, which provided for rendition of
the Chinese subjects to Chinese Government who had committed crimes and offences in China. Ord.2 of 1871 was passed as a declaratory Ordinance---de- claring that 2 of 1850 was to apply to the Treaty of Tientsin, the 21st Article of which provides for the rendition to China of Chinese criminals escaping here on 'proof of guilt.' Mr Dennys argued that 'proof of guilt' meant complete proof, and amplified the words in the Ordinance 2 of 1850 in favour of the accused. The learned Counsel for the Chinese Government argued that the Court, Magistrate, and Government will only look to Ordinance 2 of 1850, as declared by 2 of 1871. Section I of Or- dinance 2 of 1850 gives power to the mag- istrate to detain Chinese subjects having committed offences against the laws of China and being then in Hongkong: (1) if a complaint has been made by any officer of the Chinese Government; or (2) if it appear in the course of investigating any other matter, that a Chinese subject has com- mitted an offence against the laws of China; or (3) if such person bo already in cus- tody, it shall be lawful to detain such person, and to investigate the alleged crime or offence in the saine manner as if such person were charged with a crime or indictable offence committed within the col- ony Section III saya that if at the close of this investigation, it shall appear to the Magistrate or Court that such person as aforesaid is t subject of China, and that there is probable cause for believing that the said person has committed such crime or offence, it shall and may be lawful for such Magistrate or Court to commit such person for safe custody to prison, and to direct the Gaoler to detain such person in prison until the said Gaoler shall receive some order from the Governor of Hongkong, relative to the further detention, dis- pharge or transmission of such pris soner to the nearest Chinese authorities as to the Governor shall seem fit: and the Magistrate or Court shall, upon making such committal as aforesaid, transmit to the Governor of Hongkong the minutes of such investigation &c. Now, under the warrant of the magistrate the prisoner Leung Afu was committed to Ginol on 29th April 1887, pending the orders of the Governor as to his further disposal, it appearing to the said magistrate, upou investigation of the case, that there is cause to believe that the pri soner was a subject of China, and bad com- mitted crimes and offences, viz., burglary and murder, within the Empire of China. It is not stated in the warrant when the wurder and burglary were committed, nor is there any reference to the Act or Ordi- bance giving the Magistrate jurisdiction. In the case of Young Achan and 12 others, brought before this Court in Nov. 1881. the late Mr Justice Snowden iu ordering the discharge of the prisoners, although the warrant stated on the face of it that it was under Ordinance 2 of 1859, Sec. Ilf, said: 'I am unable to discover when the form now in use was adopted in this Colony. I find that the form of conviction appended to Ord. 10 of 1844 still in force requires the follow- ing particulars-setting out the information. and if the conviction is made for an offence against any Statute or Ordinance to state
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